DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _150_ OF ___2016
DATE OF FILING : 19.12.2016 DATE OF PASSING JUDGEMENT: _5.7.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Sri Jiban Chakraborty, son of Narayan Chakraborty of Rabindra Nagar, P.O Laskarpur, Kolkata – 153, P.S Sonarpur.
O.P/O.Ps : 1. Sri Pranab Chatterjee, son of late Puspa Ranjan Chatterjee of Laskarpur, Purbapara, P.O Laskarpur, Kolkata – 153, P.S Sonarpur.
2. Rita Karmakar, wife of late Jyotirmoy Karmakar
3. Ria Karmakar, Daughter of late Jyotirmoy Karmakar
Both of 5/2A, Netaji Nagar, Kolkata – 40, P.S Patuli.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
The facts of the complaint in its narrow compass run as follows:
The O.P-1 is the land owners. O.Pnos. 2 and 3 are the legal heirs of the original developer/promoter i.e Jyotirmoy Karmakar ,who is dead now. One development agreement was executed between the land owner and the original developer and thereby the original developer agreed to raise a multi storied building upon the land of the O.P-1 and the said development agreement was executed sometimes in September, 2011. A general Power of Attorney was also executed and registered by the land owner in favour of the original developer on 9.12.2011. Thereafter, the original developer executed an agreement for sale dated 6.1.2014 with the complainant and thereby he agreed to sell a self contained flat as succinctly described in the schedule to the complaint from the developer’s allocation for a total consideration price of Rs. 15 lac. Complainant paid Rs.10 lac to the developer. Thereafter developer died. O.P nos. 2 and 3 i.e the legal heirs of the original developers have not paid any attention to the repeated requests of the complainant to provide him the possession of the flat. Therefore, the complainant has filed the instant case ,praying for passing a direction upon the O.Ps for registration of the said flat in favour of him, delivery of possession and completion certificate to him and also for compensation etc.
Notice of the case was served upon the O.Ps and the O.Ps also entered into appearance in this case but no written statement has been filed by them and , therefore, the case is heard exparte against all of them.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
The complainant has filed evidence on affidavit along with the documents and the same are kept in the record for consideration.
DECISION WITH REASONS
Point no.1 & 2 :
A photocopy of the sale agreement dated 6.1.2014 has been filed herein by the complainant. On perusal of the said agreement, it is found that the original developer i.e Jyotirmoy Karmakar executed the said agreement. The complainant has also stated in his evidence that Jyotirmoy Karmakar ,the erstwhile developer, executed the sale agreement dated 6.1.2014 in his favour and also agreed thereby to sell the schedule flat to him for a consideration price of Rs.15 lac. According to him Rs.10 lac was paid by him to the developer. The payment of Rs.10 lac to the developer is also acknowledged by the developer in the sale agreement dated 6.1.2014. A further perusal of the sale agreement reveals that the original developer agreed to deliver possession of the flat to the complainant within 18 months from the date of sanctioned plan. Plan was sanctioned on 12.9.2013 vide at page 5 of the sale agreement dated 6.1.2014. The payment of Rs.10 lac is also acknowledged in the sale agreement vide clause 2 at page 6 of sale agreement dated 6.1.2014. All these evidences have remained unchallenged and relying upon the unchallenged evidence as on record, we feel no hesitation to say that the complainant has been able to prove that the original developer or the substituted O.P nos. 2 and 3 have not delivered the possession of the flat to the complainant , nor have they executed and registered the deed of conveyance in favour of the complainant within the stipulated period i.e 18 months from the date of sanctioned plan. Delay in performance of the terms of the agreement as referred to above, is undoubtedly deficiency in service on the part of the O.Ps and this being so, the complainant is entitled to get the relief or reliefs as prayed for.
Point nos. 1 and 2 are thus answered in favour of the complainant.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed exparte against all the O.Ps with a cost of Rs.10,000/- to be paid by the O.P nos. 2 and 3 to the complainant.
All the O.Ps are directed to execute and register the deed of conveyance in favour of the complainant subject to payment/deposit of balance consideration money of Rs.5 lac to the paid by the complainant to the O.Ps before the registration , within a month of this order, failing which the complainant is at liberty to get the deed of conveyance executed and registered through the machinery of this Forum.
The O.P nos. 2 and 3 are also directed to hand over vacant possession of the subject flat to the complainant along with possession certificate and completion certificate and also to pay a sum of Rs.50,000/- as compensation for loss sustained by the complainant due to harassment and mental agony caused to him by the O.P-2 within a month of this order, failing which the compensation amount and the cost amount will bear interest @10% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
